This Purchase Order is subject to the following terms and conditions (the “Agreement“) which shall supersede any inconsistent or different provisions contained in any Vendor invoice, confirming memorandum or subsequent proposal (all such inconsistent or different provisions are hereby affirmatively rejected by Atria). By beginning performance with respect to the attached purchase order issued by Atria Management Company, LLC or any of its affiliates (“Atria“), Vendor agrees to the following terms and conditions.
- PRICING AND PAYMENT.
Vendor’s pricing is reflected on the Purchaser Order (including shipping) and may not be increased without Atria’s prior written consent. Atria shall make payment within sixty (60) calendar days of receipt of Vendor’s invoices. Atria shall be allowed to deduct three percent (3%) from all such invoices paid by Atria within ten (10) calendar days of receipt. Atria will have no obligation to pay invoices submitted more the sixty (60) calendar days after delivery of Vendor’s products or completion of Vendor’s services.
- DELIVERY, RISK OF LOSS AND PASSAGE OF TITLE.
(a) Unless otherwise agreed to in the Purchase Order, Vendor shall ship all products to the “ship-to” location set forth in the Purchase Order. Time is of the essence. Vendor shall be responsible for all damages of any kind incurred or suffered by Atria which were caused by a delay of Vendor in meeting delivery schedules. Vendor shall also be responsible for all premium logistics cost resulting from Vendor’s inability to meet delivery schedules, including costs incurred in getting products to Atria;
(b) delivery shall not be deemed complete until the products have been actually received by Atria at the “ship-to” location. Risk of loss and damage in transit shall remain with Vendor and shall not pass to Atria until products are received by Atria and in a condition in compliance with the terms of this Agreement. Unauthorized advance shipments and shipments other than for the quantity ordered are returnable at Vendor’s expense; and
(c) Title to products shall pass to Atria free from all liens and encumbrances upon completion of delivery.
- INSURANCE REQUIREMENTS.
Vendor shall maintain the following minimum insurance coverages from licensed insurers:
(a) commercial general liability provided on an occurrence basis including coverage for premises-operations, broad form property damage, products/completed operations, contractual liability, independent contractors, personal injury and advertising injury and liability assumed under an insured contract (including coverage for Vendor’s indemnity obligations under this Agreement) with limits of at least $1,000,000 per occurrence and $2,000,000 general aggregate;
(b) auto liability insurance: Limit $1,000,000 per occurrence combined single limit coverage for bodily injury (including death) and property damage;
(c) cyber-crimes coverage with limits of at least $2,000,000; and
(d) workers’ compensation in not less than statutory limits.
Atria and its affiliates shall be named as additional insureds on Vendor’s general liability policies. Vendor shall provide a certificate of insurance indicating the above requirements to Atria upon request. Certificates provided to Atria shall require that Atria be notified, in writing, at least thirty (30) calendar days prior to the cancellation, material modification, or material reduction in coverage provided by each applicable policy. The insurance limits provided hereunder are minimum requirements only and shall not be deemed to limit Vendor’s liability hereunder.
Vendor shall timely indemnify and hold harmless Atria and its affiliates (the “Indemnified Parties“) from and against any and all liabilities, claims, costs, expenses (including reasonable attorneys’ fees as and when incurred), damages and judgments arising out of or resulting from:
(a) the performance of the services or sale of products governed hereunder; provided that such liabilities are caused or contributed to by a negligent or willful act or omission of Vendor or its employees, subcontractors, agents or representatives and/or
(b) the breach by Vendor of its obligations under this Agreement.
The terms of this Section 4 shall expressly survive the termination or expiration of this Agreement.
- RIGHT TO AUDIT.
Atria shall have the right to audit all work papers, financial data, accounting records, third-party invoices and supporting proofs of performance, and all other records relating to Vendor’s performance under this Agreement and/or from which Vendor’s invoices are generated. Vendor agrees that it shall keep full financial records in accordance with generally accepted accounting principles consistently applied and shall retain all applicable records for at least five (5) years from the date of invoicing or longer if required by law. Upon a determination by Atria and/or its auditor(s) that financial discrepancies exists, Vendor agrees that it shall:
(a) immediately pay such amount to Atria and
(b) reimburse Atria for all costs associated with the audit.
- ATRIA’S RIGHT TO TERMINATE THE AGREEMENT.
Notwithstanding anything to the contrary, Atria may terminate this Agreement (and the purchase order) with or without cause upon not less than ten (10) calendar days advance written notice to Vendor. Unless otherwise instructed by Atria in writing, Vendor will immediately cease all work upon receipt of the notice of termination and Atria’s only obligation to Vendor shall be to pay an equitably prorated portion of the agreed contract price for any pre-authorized work successfully completed or products delivered through the effective date of such termination.
Atria may freely assign this Agreement without the consent of Vendor. Upon such assignment, Vendor agrees to look solely to the new assignee for performance of any obligations created hereunder. Vendor cannot assign this Agreement without the prior written consent of Atria, which consent may be withheld in Atria’s sole discretion.
- REPRESENTATIONS AND WARRANTIES.
Vendor expressly represents and warrants to Atria that:
(a) Vendor’s services shall be provided in a timely and good and workmanlike manner and will be free from defects and
(b) any products sold to Atria hereunder:
(i) will be new and will conform to Vendor’s and the product manufacturer’s standard written specifications;
(ii) will be fit for their intended uses and purposes;
(iii) will be merchantable;
(iv) will comply with all applicable laws and regulations; and
(v) will not infringe the intellectual property rights of any third-party.
Upon completion of services and/or delivery of products, Vendor shall assign and deliver to Atria all third-party warranties, guaranties and other similar undertakings from Vendor’s suppliers, subcontractors and manufacturers.
Vendor agrees that all information relating to Atria’s business including, but not limited to, internal business information; strategic and staffing plans and practices; business strategies; spend rates; discounting, marketing, promotional and sales plans, practices and programs; training practices and programs; rate structures; and accounting and business methods constitutes Atria’s “Confidential Information.” Vendor may not use or appropriate for its own behalf, or disclose or communicate, directly or indirectly, any of the Confidential Information to any third-party without Atria’s prior written consent. The foregoing obligations of confidentiality do not apply to any information that:
(a) is made publicly known without breach hereof by Vendor;
(b) is lawfully disclosed to Vendor by a third-party;
(c) is produced by Vendor pursuant to legal process (after giving advance written notice thereof to Atria); or
(d) is developed by Vendor independently of the receipt of Atria’s Confidential Information.
- LIABILITY LIMITATIONS.
UNDER NO CIRCUMSTANCES SHALL ATRIA BE LIABLE TO VENDOR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING LOST OR ANTICIPATED PROFITS, ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER SUCH CLAIMS ARE BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER ATRIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INDEPENDENT CONTRACTORS.
Atria and Vendor are for all purposes independent contractors to each other and nothing in this Agreement shall be construed otherwise.
- CHOICE OF LAW AND FORUM SELECTION.
This Agreement shall be governed, enforced and interpreted under the substantive laws of the Commonwealth of Kentucky, without regard to Kentucky’s conflicts of laws principles. Vendor submits to personal jurisdiction in Kentucky and agrees that all claims, disputes, and lawsuits arising out of or in connection with this Agreement shall be resolved or adjudicated exclusively in the state and federal courts of appropriate subject matter jurisdiction sitting in Louisville, Jefferson County, Kentucky. TO THE MAXIMUM EXTENT ALLOWED BY LAW, BOTH PARTIES HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY FOR ANY AND ALL CONTROVERSIES ARISING BETWEEN THE PARTIES UNDER THIS AGREEMENT.